Cordina Chicken Farms Pty Ltd v Attard Racing Pty Ltd

Introduction

1. HIS HONOUR: Attard Racing Pty Ltd ("Attard") owns the land at 2598 Weismans Ferry Road, Mangrove Mountain ("the site"). Supreme Poultry and Chickens Pty Ltd ("Supreme") conducts a poultry processing plant on the site.
2. The site is within the local government area administered by Gosford City Council ("the Council"). The site is zoned RU1 Primary Production pursuant to the Gosford Local Environmental Plan 2014 ("the LEP"). The activities conducted on the site are classified as livestock processing industries, a classification which falls within a broader encompassing classification of rural industries. Rural industries are permissible with consent in the zone under the LEP.
3. Prior to the modification application considered in these proceedings, there was a 1994 development consent operative for the site. The 1994 consent (Exhibit B, Tab A4) describes the approval as being in the following terms: Development Application No: 18772 Proposed Expansion of the Existing Chicken Smallgoods Processing Factory (Rural Industry) on Lot 141 DP 618064 and boundary adjustment between Lot 141 DP 618064 and Lot 77 DP 755253 Wisemans Ferry Road, Mangrove Mountain.
4. The activities carried out on the site as a consequence of the 1994 approved extensions to the existing chicken processing plant were: 1. Receipt of dead chickens or portions of dead chickens from sources off-site; 2. Processing the chicken material so received (including preparation for and partial cooking of a variety of chicken products); and 3. Packing and dispatching of bulk processed and partially cooked chicken products to clients of that enterprise.
5. In 2015, Supreme applied to the Council to modify the 1994 development consent. The modification application described the existing consent as being "chicken processing factory" (Exhibit B, tab 7A, folio 30). The description given of the proposed modification in the application made to the Council was in the following terms (Exhibit B, tab 7A, folio 31): To include poultry slaughtering
6. The activities of the processing plant can be described, in short, as: 1. Receipt of live chickens; 2. Killing, cleaning and otherwise preparing these chickens for processing; and 3. Processing the killed chickens either by packing and freezing whole bird carcasses or processing the birds into a variety of less than whole bird chicken products.
7. No cooking takes place on the site. No dead chickens or parts of of chickens are now received at the plant - only live chickens. Waste water from the process is treated on the site and irrigated either on land within the site or on an immediately adjacent property. Other waste or by products resulting from Supreme's activities are removed from the site either for reprocessing into pet food or for appropriate disposal.
8. It is agreed (Statement of Agreed Facts at 7 and 8) that the 1994 development application did not seek approval for the killing of chickens or for the plucking, bleeding, gutting (evisceration) or de-hocking (removal of feet) of chickens - these being the precursor activities to the meat tprocessing activities.
9. Supreme had commenced the present chicken processing activities on the site in about December 2014. Later in that month, the Environment Protection Authority issued Supreme with a prevention notice requiring it to cease receiving live chickens and processing them at the site. Following this, the Council wrote to Supreme and advised that the 1994 Development Consent did not authorise those activities. The 2015 modification application was made in response to these communications.
10. The modification application was made pursuant to s 96(1A) of the Environmental Planning and Assessment Act 1979 ("the Act"), a provision that is in the following terms: 96 Modification of consents - generally (1) ………………………………………... (1A) Modifications involving minimal environmental impact A consent authority may, on application being made by the applicant or any other person entitled to act on a consent granted by the consent authority and subject to and in accordance with the regulations, modify the consent if: (a) it is satisfied that the proposed modification is of minimal environmental impact, and (b) it is satisfied that the development to which the consent as modified relates is substantially the same development as the development for which the consent was originally granted and before that consent as originally granted was modified (if at all),
11. This application was assessed by a Council Officer, Mr Eyre, and, on 13 March 2015, Mr Anderson, the Council's Chief Executive Officer ("CEO") - acting as delegate of the Council - approved the modification application subject to conditions that were set out in the Notice of Determination.
12. Supreme has also erected two structures on the site without development consent (with Supreme conceding that development consent should have been obtained). These structures are known as "the Lairage" and "the Offal Tower". The Lairage is a covered facility for the receipt and temporary holding of live chickens prior to their processing whilst the Offal Tower is a structure within which waste products generated by part of the processing of the killed chickens are stored prior to the disposal of this material.

the proceedings

1. Cordina Chicken Farms Pty Ltd ("Cordina") brought these proceedings seeking to have the modification application declared void and of no effect and permanently restraining Attard and Supreme from killing poultry at the site - with the consequence that Attard and Supreme would, at least, be prevented from carrying out its present processing activities in their current form.
2. In the alternative, Cordina seeks declaration that each of the Lairage and the Offal Tower is development requiring consent and for which consent has not been granted and that Attard and Supreme be restrained from using either the Lairage or the Offal Tower until development consent is obtained for the use of these structures.

The primary matters - s 96(1a)(a) and (b)

1. There are, therefore, for the purposes of my consideration, two primary matters requiring determination. These are: 1. Was it manifestly unreasonable for the Council decision-maker to conclude that the activity for which consent was sought by the modification application was of minimal environmental impact? and 2. Was it manifestly unreasonable for the Council decision-maker to conclude that the development, when modified, would be substantially the same development as the development for which consent was originally given?
2. I am satisfied that Cordina has not demonstrated that either of these questions should be answered in the affirmative. The analysis following in this judgment explains why I have reached this conclusion for each proposition.

The secondary matters - the unapproved structures

1. There are also two secondary matters requiring consideration. These arise as a consequence of the fact that the Lairage and the Offal Tower have been erected without development consent in circumstances where such consent is required (conceded in 32 to 36 and 38 to 41 of the Statement of Agreed Facts).
2. The first matter is that Cordina has sought declarations confirming this position with respect to each of these structures and, of controversy between the parties, orders requiring that Supreme cease the use of these structures forthwith.
3. However, the second arises from Ms Duggan SC, counsel for Attard and Supreme, submitting that, under the circumstances, Supreme should be provided with the opportunity to have its building certificate applications for these two structures (being applications made to the Council on 17 June 2015) dealt with before any ban on use of the structures should come into effect (if I were minded to contemplate imposing such bans).
4. I am satisfied that the declarations should be made and use of the two structures banned. However, for the limited reason that the immediate implementation of such a ban would have the likely effect of rendering 23 (at least) workers at the plant unemployed, the social impact of doing so warrants suspension of the coming into effect of such orders to provide an opportunity for Supreme to discuss the building certificate application process with the Council.
5. As proposed by Ms Duggan, the orders suspend such bans for a period of eight weeks and grant liberty to the parties to approach the Court to seek an extension of the suspension or some other variation to the orders arising from the discussions with the Council (or generally).

First s 96(1a) matter - "Minimal environmental impact"

1. Mr McEwen SC, counsel for Cordina, took me to the extent of the differences between processes in the before and after consent modification situation, particularly the fact that the area of land required for the irrigation of waste water generated from the present activities undertaken by Supreme on the site would be doubled when compared to that of the 1994 consent activities. When challenged by me to explain how that would lead to a conclusion concerning the extent of the environmental impact of the irrigation of the water on that extended land area would be other than minimal, he was unable to do so.
2. In support of the modification application, Supreme provided the Council with three expert reports concerning waste water treatment and disposal. These were by Transpacific, (Exhibit C, tab A29), Aquadynamic (Exhibit C, tab A30): and Nalco (Exhibit C, tab A37).
3. Mr McEwen conceded that there was nothing in any of these documents that would have precluded the Council decision-maker from being satisfied that the environmental impact of this process was minimal. Given this concession and the fact that he was unable to point to any other aspect arising from the proposed modification that could have been expected to result in an impact that was other than minimal, there is no basis upon which it could be concluded that the decision-maker acted unreasonably, let alone manifestly unreasonably, in concluding that the modification application had minimal environmental impact and, as a consequence, properly fell within and satisfied the first of the tests of s 96(A) of the Act.

Second s 96(1a) matter - "Substantially the same development"

Introduction

1. Having concluded that there was no unreasonableness in the Council's decision-maker being satisfied that the proposed modified development was of minimal environmental impact, I now turn to consider whether there was a sufficient basis for the decision-maker to conclude that the development as proposed to be modified, would be substantially the same development as the development that was originally approved in 1994.
2. Consideration of this question requires a more detailed factual analysis of the processes that were approved by the 1994 development consent (including limitations on it contained in the conditions attaching to that consent) and the comparable operational position applying as a result of approval of the 2015 modification application. The results of this analysis must then be tested against the established legal framework for determining whether it was manifestly unreasonable for the decision-maker to conclude that the "substantially the same development" test was satisfied.

The 1994 development consent

1. The 1994 development consent was granted pursuant to the provisions of Interim Development Order No.122 (the IDO). At that time, the site was zoned 1(A) Rural (Agriculture) under the IDO. In the land use table to the IDO for this zone, amongst the forms of development that were permitted with consent, was "Rural Industries". The definition of Rural Industry in the IDO was in the following terms: "Rural Industry" means the handling, treating processing or packaging primary products and includes the servicing in a workshop of plant or equipment used for rural purposes in the locality but does not include the extraction of groundwater for commercial purposes.
2. The 1994 Development Consent was granted in response to a Development Application made by the then operators of the plant. It is appropriate to set out some information from the Statement of Environmental Effects ("SEE") submitted to the Council in support of the 1994 Application. The SEE was contained in Exhibit B behind tab A3. The document describes the application as: Seeking Council's approval of a proposal to extend the existing chicken processing plant.
3. In addition to site works, building construction and plant, the proposal also involved the acquisition of 9000 m² from an adjoining property to the south and its consolidation into the site.
4. The activities carried out in the then existing plant sought to be expanded, were described (SEE page 2) in the following terms: The existing Plant incorporates two separate processes - a boning room operation and a production line. In the boning room, chicken thighs are deboned and chicken carcasses stripped of their white meat, the deboned meat being fed to the production line. On the production line, the chicken meat is frozen and moulded into a mat from which the nuggets or patties are stamped. These proceed on a conveyor belt to be dusted with flour, dipped in batter and deep fried. The finished product emerging consists of frozen blocks of meat covered with a partly cooked batter. These are freeze-dried, packed and stored until removed for distribution.
5. The chicken material used by the plant is described (SEE page 3) as being chicken carcasses and thighs. It notes that some chicken meat, deboned ready for the production line, is also used. These chicken elements were brought to the plant from other plants operated by the then owner at locations remote from the site.
6. With respect to elements other than chicken meat products that were generated by these processes, these are described in the following terms (SEE page 3): The principal by-products from the plant are bones and offcuts from the boning room and wastes arising from the daily wash down of the plant and its equipment. The chicken frames and thigh bones, skin and off-cuts are contacted in the boning room and stored in a cool room until removed. Each day, a van from the Valley View poultry abattoir at Gosford collects this material and takes it to that company's plant at Lisarow where it is added to that plant's waste for removal to the Uncle Ben's Pet Food Factory at Bathurst. The wash down waste is waterborne and is treated in the plant's waste water treatment plant where it is screened to remove larger particles and treated with flocculants to remove fine material in suspension. The clean water emerging from the plant is chlorinated and pumped to storage dams and settlement ponds. Most of this water is recycled after ultraviolet sterilisation for use in washing down, the staff septic system and garden watering. If necessary, any excess water collecting in the pondage system is disposed of by irrigation over parts of the property. The waste water treatment plant is licensed by the Environmental Protection Authority to treat 180,000 litres per day. It currently treats about 45,000 litres of waste water each day rising to 60,000 litres at peak. and, at page 4 of the SEE: The only waste material that is removed from the plant for disposal in landfill tips is the solid material (sludge) from the waste water treatment plant. This is removed regularly by a commercial contractor to tips at Woy Woy or Wyong.
7. The Council granted development consent on 13 September 1994, subject to conditions, with the notice of determination (Exhibit B, tab A4 at page 17) describing that for which consent was granted in the following terms: Development application number 18772 proposed expansion of the existing chickens smallgoods processing factory (Rural Industry) on Lot 141 DP618064 and boundary adjustment between Lot 141 DP618064 and Lot 77 DP755253 Wisemans Ferry Road Mangrove Mountain.
8. The Notice of Determination was accompanied by three pages of conditions for development consent under the same heading with those conditions being numbered from 1 to 36. Two of those conditions, conditions 21 and 35 are relevant in these proceedings. Those conditions are in the following terms: 21. The premises not being used for the purposes of an abattoir. 35 The development shall be undertaken in strict compliance with the statement of environmental effects prepared by Design Collaborative Pty Ltd, dated 8 June 1994 reference number 944808. IS, or where modified by any conditions of this consent.
9. The June 1994 SEE (Exhibit B, Tab A3) provided the information earlier set out concerning the process proposed for approval but also describes that for which consent was being sought as being to extend an existing chicken processing plant. The incorporation of condition 35 in the 1994 consent imports, relevantly, the process descriptions that are contained in the SEE, thus providing more detail (of relevance given that the 1994 Development Application form is not in evidence in these proceedings).

The 2015 modification application

1. On 20 January 2015, Attard and Supreme lodged an application to modify the 1994 development consent. The modification application form nominated the original development consent as allowing: Chicken processing factory
2. Although the word "smallgoods" is omitted from the 1994 description, Cordina did not seek to make anything of this.
3. As earlier noted, at the time of the lodgement of the modification application, the relevant environmental planning instrument was the LEP. The 1994 activity falls within the definition of livestock processing industry in the LEP as a consequence of the coming into effect of that instrument prior to Supreme making its modification application.
4. The definition of Livestock Processing Industry in the LEP is in the following terms: "Livestock Processing Industry" means a building or place used for the commercial production of products derived from the slaughter of animals (including poultry) or the processing of skins or wall of animals, derived principally from surrounding districts, and includes abattoirs, knackeries, tanneries, wool scours and rendering plants.
5. Livestock processing industries are a sub-classification of Rural Industry as defined in the LEP.
6. As earlier noted, the modification is described in the application to the Council as being "to include poultry slaughtering". With respect to the question on the application form - "Will the modified development be substantially the same as the development that was originally approved?" - the completed application form says (Exhibit B, tab 7A-7F, folio 31): Please see Document 1 (overview); and Document 2 (excel comparison table)
7. Document 1 (overview) attached to the 2015 modification application includes, relevantly, the following:

Introduction and Overview This statement has been prepared to outline the operations of Supreme Poultry and to compare their similarity with the previous operator Inghams. Supreme Poultry is a family owned company that processes spent hens (laying hens that have come to the end of their productive lives). In 2014 (15/5/14) the Attard family purchased the factory from Inghams for the purposes of slaughtering and processing their birds. Supreme Poultry's operation is substantially the same other than the birds being slaughtered on site. 15 people and around 15% of the production area is used for this purpose. The remainder of the 85 strong workforce is employed on further processing much the same as Inghams. This included the weighing and bagging of whole birds plus the deboning of meat and finally packaging a finished product. Supreme Poultry also produce pet food from the carcasses bones and wings. Supreme Poultry strongly believe their operation has a lesser effect on both the environment and its surrounding neighbours. This is mostly due to no cooking taking place. This means no cooking oils and no smoke pollution. The power consumption on site is expected to be far less than Inghams due to less mechanical processes however the total water usage is higher. Vehicle movement will be much less as Supreme have 3 trucks each day delivering birds plus 2 trucks removing finished and waste products. We believe Inghams had multiple delivery both in and out of the factory each day. Waste water treatment is of a high importance and a strict requirement of the EPA. There have been some start-up problems in this area but Supreme believe that now with the help of two water treatment experts we are on top of the problem.

Production Birds arrive via trucks in plastic modules. These are unloaded and positioned ready for birds to be loaded onto the conveyor line. Birds enter the factory at a rate of around 3000 per hour. They enter the slaughter room where they are killed and plucked. Feathers are piped up to a holding tank for waste collection later in the day. The birds move into the evisceration room for gutting and cleaning. All waste is vacuum piped up to collection tanks for waste collection. From this point the bird goes either onto a weighing line where it is sized then bagged or in bins for deboning. A bagged whole bird will then get boxed and packed ready to be frozen. All other birds are moved to the boning room where around 40 people remove meat from the carcass and box then pack as required. The bones and scrap meat is then moved to the pet food room where it is minced and packed for animal consumption. Supreme also collects and packs eggs and egg yolks. Finally the waste offal, feathers, feet and heads were previously piped up to the holding tanks are collected and sent for off-site rendering by a local contractor. Our water treatment plant also scrapes solids into separate tanks for off-site disposal. The only waste product left is the waste water that is treated in the water treatment plant which is then sent to the aeration pond and finally irrigated out onto the paddock. We are conducting studies to determine the contents of this waste but believe that as it only contains chicken waste not cooking oils it will be less of a hazard to the environment compared to that of Inghams.

1. Although the spreadsheet attached to the modification application (Exhibit B, tab 7A-7F, folios 39 - 41) sets out the details of the operation including some aspects where the comparison shows similarities between operations based on the 1994 development consent and those operating following the approval of the modification application by the Council, it also shows changes between the two positions (such as the statement "no cooking equates to less electricity and gas consumption").
2. After approval of the modification application on 13 March 2015 and variation by the Environment Protection Authority to Environment Protection License 1556 on 20 March 2015 held by Supreme so as to permit "slaughtering or processing of animals (0-30,000T processed)", Supreme recommenced activities including the killing of chickens at the site.
3. The Statement of Agreed Facts acknowledges that primary and secondary processing is carried out at the site. These processes are described (at 28 and 29 in the following terms: Primary processing involves: housing the birds; hanging the bird on an overhead conveyor; conveying the birds through an electrical stunning bath; cutting the throat of the bird by the "killing machine"; conveying the birds (during which time the birds are bled) to the scalder; plucking or de-feathering the birds; eviscerating the birds (gutting) by machine or manually; rinsing the birds in a washer; de-hocking the birds (removing their feet); placing the birds in the spiral chiller, where they are further washed. Secondary processing involves: hanging the birds on a drip line for weighing and sorting; bagging and packing and transport to the freezer of some whole birds; transport of pallet-sized bins to cool room before transporting them to the boning room; the leg maryland (thigh and leg piece) are cut off the bird and packed and transported to the freezer; the bird's breast is deboned and packed and transported to the freezer; the remainder carcass is the placed into pallet sized bins into the minding room where the product is minced by machine before being bagged and transported to the freezer; bags and boxes are lastly labelled and palletised for transport off the Land.
4. It therefore follows that, for the purposes of these proceedings, the comparison necessary to be considered, for the purposes of s 96(1A)(b) is whether or not the activities set out immediately above could be accepted as being substantially the same as the activities for which the 1994 consent was granted as understood through the terms of the SEE.

The Council's approval of the 2015 modification application

1. As earlier noted, the modification application was approved by the Council's CEO as the delegate of the elected Council. Although the CEO did not provide reasons for his decision in approving the modification application, it is reasonable to assume that he had the benefit of the assessing officer's report (Exhibit B, tab A18, from folio 127) at the very least for his consideration. It is necessary, therefore, to consider this document in some detail before moving on to the relevant legal constructs framing decision-making with respect to applications under s 96(1A)(b) of the Act.
2. It is not necessary to set out any extracts from the assessing officer's synopsis save noting that he recommended that the proposed modification be approved.
3. In the assessment report (folio 130), the following appears under the heading Statutory Considerations: The existing and proposed use is defined as a livestock processing industry being an industry for the commercial production of products derived from the slaughter of animals, including poultry. A livestock processing industry processing more than 3000kg of live weight per day or located in the work catchment area is classified as "designated development" under schedule 3 of the Environment Protection Authority Regulations. The site is located in a water catchment area and processes more than 3000kg per day. However, under clause 35 of the Regulations, development involving alterations or additions (whether existing or approved) is not designated development if, in the opinion of the consent authority, the alterations or additions do not significantly increase the environmental impacts of the total development, subject to an environment protection license issued by the environment protection authority. The proposed alterations to the current operations to include slaughter are contained within the existing buildings on the site and are not likely to have any significant additional environmental impacts. Therefore, the proposal is not classified as designated development and Council may determine the current s 96 application.
4. The assessment report then goes on to set out the result of external referrals to the Environment Protection Authority and the Department of Primary Industries. In summary, after provision by Supreme of additional information on matters raised by each of those bodies, each of them indicated that, subject to the incorporation of additional conditions, neither body had any concern about the proposed modification.
5. In this overall context, it is necessary to consider whether the conclusions of the assessing officer (necessarily presumed to be adopted by the CEO) that: 1. the proposed alterations were not likely to have any significant additional environmental impacts; and 2. the Council had power to determine the modification application were conclusions reasonably open to be drawn on the circumstances of the application and whether these conclusions could not, in any fashion, be regarded as being manifestly unreasonable.
6. The assessing officer's report says (at folio 132) that: The development, to which consent as modified relates, is substantially the same development as the development for which the consent was originally granted.
7. Thus, I turn to consider whether or not formulation of this proposition by the assessing officer and its adoption by the CEO as the Council's delegate, was not manifestly unreasonable.
8. Two further extracts from the Council's material should be reproduced before turning to considering the legal framework within which such assessment is to be made. The first comes from Appendix 1 (commencing at folio 135) to the assessing officer's report. Appendix 1 dealt with public submissions on the application and provides a list of and a response to issues which had not been addressed in any detail in the main body of the assessment report. The first of those dealt with issues requiring consideration in these proceedings. This portion of the Appendix dealt with the first objection in the following terms: 1. The proposed change is not a s 96 application. The current development is approved as a "chicken smallgoods processing factory", a kind of rural industry under the planning controls. Condition 21 prohibits the use of the premises as an abattoir. It is not legal to introduce a new use. Comment The rural industry is a permissible use with consent on lands zoned RU1 Primary Production. Rural industry includes a livestock processing industry. The modification to permit the slaughter of poultry is substantially still the same development. The slaughter process is a subservient part of the process and not the dominant use.
9. The letter of the Council to Attard dated 13 March 2015 was signed by the assessing officer on behalf of the Council's CEO. This letter (Exhibit B, tab A21) included the following paragraph: Having regard to the provisions of s 96(1A) of the Environmental Planning and Assessment Act, 1979, the Council is of the opinion that the amended proposal is a minor modification and is substantially the same development consented to by the Council.
10. The proposal is described in the heading to this letter as being: Amendment under s 96(1A) of the Environmental Planning and Assessment Act the Approved "Proposed expansion of the existing Chicken Smallgoods Processing Factory (Rural Industry)" s 96 Amendment - Processing of Poultry including Slaughtering.
11. The letter then sets out the terms of the modification to the 1994 consent by:

• Deleting condition 21; and
• Imposing 8 conditions additional to those attached to the 1994 consent.

1. It is to be observed, in passing, that the new conditions added to the 1994 consent conditions included conditions proposed by the external bodies to which the modification application had earlier been referred.

Comparing the 1994 consent and the 2015 modification proposal

1. Cordina relied, as I understood the evidence and submissions on its behalf, primarily on what it said were the substantive differences between the 1994 development consent position and the 2015 position following from the modification application approval. In simplistic terms, I understood these to be: Tertiary processing (preparation for and partial cooking) v dispatch of uncooked chickens (whether whole or in parts); and The use of chicken carcasses or part carcasses imported to the site v killing and processing live chickens.
2. In terms of process descriptors, Mr McEwen said that this equated to a 1994 development consent position of secondary and tertiary processing when compared to a 2015 modified consent comprising primary and secondary processing.

Manifest unreasonableness and the decision-maker

1. It is initially appropriate to note, in passing, that the Council's delegate, for decision-making on the modification application, sub-delegated the analysis and resultant report preparation to Mr Eyre. Doing so was, in itself, an unexceptionable process consistent with general local government practice.
2. Having done so, provided there was no obvious basis upon which the decision-making delegate could have concluded that the report was based on inadequate, incompetent or inappropriate consideration by Mr Eyre (and there is nothing on the face of the documents that could cause such a conclusion to be contemplated), there was nothing unreasonable (let alone manifestly unreasonable) in the decision-making delegate considering and relying upon Mr Eyre's report - a report that referenced the various source documents that would have been available to the decision-making delegate had this been necessary (whether or not such recourse was actually had or not being irrelevant, in my view, in the circumstances).
3. Although it plays no major role in these proceedings, it is appropriate to observe that the power to modify an existing development consent should be regarded as beneficial and facultative (North Sydney Council v Michael Standley & Associates Pty Ltd (1998) 43 NSWLR 668 per Mason P at [475]).
4. The commencing points in this analysis come from the decision of Stein J in Vacik Pty Limited v Penrith City Council (24 February 1992 - unreported). The first of them is that "the applicant for modification bears the onus of showing that the modified development is substantially the same" thus resulting in, for the present proceedings, the Council's decision-maker having sufficient basis for it to be reasonable to conclude that Supreme had discharged this onus. The second point to be drawn from Vacik is that "substantially" when used in the section means "essentially or materially or having the same essence".
5. Vacik also sounds the cautionary note that: One should not fall into the trap of saying that the development was for a certain use - extractive industry - and, as amended, it will be for precisely the same use and accordingly is substantially the same development. What is important is that a development, particularly extractive industry, must be assumed to include the way in which the development is to be carried out
6. Vacik continues to note that, in that case, an additional and distinctly different use was proposed to be included as part of the overall activities on the site that was the subject of that application. In that case, the applicant did not submit that the new, separate use of the land was incidental or ancillary to the dominant use. Indeed, the applicant conceded that a separate development consent might have been needed for the additional use.
7. It is also appropriate to note that the consideration of whether the substantially the same test has been met requires an examination of the before and after circumstances both qualitatively and quantitatively (Moto Projects (No 2) Pty Limited v North Sydney Council [1999] NSWLEC 280; (1999) 106 LGERA 298).
8. Cordina claims that granting the modification was manifestly unreasonable because there was no basis that the person exercising the Council's consent function could have been satisfied on the information available to the Council, that: The development the subject of the modification application was substantially the same development as the development for which consent was originally granted as required pursuant to s 96 (1A)(b) of the EP & A Act as, when considered quantitatively and qualitatively, the development will not be essentially or materially the same, nor will it have the same essence. It will be radically transformed.
9. In this regard, the particular attribute of the modification application that is said by Cordina not to be open to the Council decision-maker to accept as falling within "substantially the same development" was by: Permitting an abattoir use via the modification power. The incorporation and the original consent of the distinct use of "abattoir" necessarily results in the development as modified being fundamentally different from, and therefore not substantially the same as, that for which the original consent was granted, which was for the processing of meat slaughtered off-site and the cooking of that meat.
10. Considering these matters involves me assessing whether there was an adequate basis for the Council's decision-maker reaching the conclusion adopted (not whether I agree with that conclusion). It is clear that such judicial review process is available (Australians for Sustainable Development Inc v Minister for Planning [2011] NSWLEC 33; (2011) 182 LGERA 370 - Biscoe J at [218]).
11. The Council assessing officer's report is laconic but that is no vice provided the conclusions expressed in it were available to be drawn from all the material submitted by Supreme. This requires testing whether or not the conclusion was reasonably available to be drawn on the material or whether, as Cordina submits, it was manifestly unreasonable so to conclude.
12. It is also clear that I must be satisfied that the Council's decision-maker addressed both of the questions posed by s 96(1A) as without doing so, the relevant state of satisfaction could not be achieved (King, Markwick, Taylor & Ors v Bathurst Regional Council [2006] NSWLEC 505; (2006) 150 LGERA 362 - Jagot J at [64]). I have earlier explained why the test in s 96(1A)(a) was clearly satisfied
13. Stripped to its essentials, Cordina's case, was that:

• that which had been approved by the 1994 consent comprised secondary and tertiary processing; whilst
• that resulting from the Council's approval of the 2015 modification application resulted in primary and secondary processing.

1. It is clear from the opening submissions made on behalf of Cordina (written submissions at 37 to 39, in particular), that it is the addition of what is described as an abattoir to the activities on the site that is said to found the flaw in the Council's decision making process so as to render it manifestly unreasonable.
2. I did not understand that the submissions made for Cordina (both written and oral) made any complaint concerning the removal of the tertiary processing but founded the unreasonableness argument on the permitting of the adding of killing and cleaning of live chickens - as it was submitted that this process sufficiently shifted the characterisation of the purpose for which the site was being used so that it was unreasonable (and manifestly so) for the decision-making delegate to answer the s 96(1A)(b) question in the affirmative.
3. Attard and Supreme relied on the decision of Preston CJ in Chamwell Pty Ltd v Strathfield Municipal Council [2007] NSWLEC 114, (2007) 151 LGERA 400 where his Honour held [at 36]: The characterisation of the purpose of a use of land should be done at a level of generality which is necessary and sufficient to cover the individual activities, transactions or processes carried on, not in terms of the detailed activities, transactions or processes.
4. As is obvious from the decision in Chamwell, the level of generality must have some precision in order to permit the characterisation exercise to be undertaken in a proper fashion.
5. In response to the reliance on this passage in Chamwell that had been derived from Royal Agricultural Society v Sydney City Council (1987) 61 LGERA 305, Cordina relied on the sentence that followed the passage from which his Honour derived the propositions cited from Chamwell. This sentence reads: But it is not so general for the characterisation activities, transactions or processes which differ in kind from the use which the activities etcetera as a class made of the land.
6. It is also clear that the level of generality cannot be so wide as to encompass permitting conclusions that fundamentally incompatible activities might be characterised as being for the same purpose. The generic term "shop" is an example whereby a vast array of retail activities are potentially drawn within the scope of the term but where the purposes of a "shop" can be so divergent that consideration at that level of generality of term is entirely inappropriate.
7. In my view, it is instructive to reproduce the totality of the paragraph from which each side has sought to draw principles in support of their own case in these proceedings. Although Royal Agricultural Society was dealing with existing use rights, it seems to me that the framework of principles described (commencing at the foot of [309]) in their entirety are relevant in these proceedings. The passage, in its entirety, reads: The object of "existing use" provisions in town planning legislation is to permit the continuation of the use of land for any purpose for which it was used immediately before the passing of the legislation even though the terms of the legislation prohibited that purpose wholly or partially or upon conditions. The rationale of these savings provision is that it is unjust to deprive an owner of the right to use his land for an existing purpose. Because "existing use" provisions are incompatible with the main objects of the legislation of which they form part, the Courts have had to develop principles which reconcile the rights of owners to have the full benefit of the existing use of land with the right of the local authority to enforce the conflicting objectives of town planning legislation. The Courts have done so by refusing to categorise an existing use so narrowly that natural changes in the method of using the land or carrying on a business or industry will render an existing use right valueless. At the same time, the Courts have been concerned not to categorise the purpose of an existing use so widely that the land or premises could be used for a prohibited purpose which was not part of its use at the commencement of the legislation. Accordingly, a test has been devised which requires the purpose of the use of land to be described only at that level of generality which is necessary and sufficient to cover the individual activities, transactions or processes carried on at the relevant date. Thus the test is not so narrow that it requires characterisation of purpose in terms of the detailed activities, transactions or processes which have taken place. But it is not so general for the characterisation activities, transactions or processes which differ in kind from the use which the activities etcetera as a class made of the land.

Conclusion on the s 96(1A) tests

1. As a consequence of the foregoing, I am satisfied that it was open to the decision-maker to conclude that, on the basis of the material available to him, both tests mandated by s 96(1A) were satisfied. There is certainly no basis, in my view, to consider that this conclusion was manifestly unreasonable.

The unapproved structures

1. In or about August 2014, Supreme erected a structure at the western end of the main building on the site. The purpose of this structure is to provide protection to live chickens prior to their being used in production on the site. This structure is known as the Lairage.
2. Supreme concedes that the Lairage is a structure that required development consent; no such consent had been granted by the Council; and that the use of the Lairage is a breach of s 76A of the Act (Statement of Agreed Facts at 32-36). Supreme has had an application for a building certificate pursuant to s 149D of the Act prepared. It was lodged with the Council on 17 June 2015.
3. The same position of irregularity applies to the Offal Tower (paragraphs 38-41) - although I note that there is no concession, in terms, that the erection and use of the Offal Tower constitutes a breach of s 76A of the Act. However, nothing was put to me by Ms Duggan that would suggest that there should be any difference in my treatment of the Lairage and the Offal Tower. Supreme has had a building certificate application pursuant to s 149D of the Act prepared for the Offal Tower and this application, too, was lodged with the Council on 17 June 2015.
4. As a consequence, given Cordina's failure in its principal claim for relief, the declarations sought by Cordina in paragraphs 3 and 5 of the relief sought in the Summons, are appropriate to be made (I did not understand that, in the circumstances of the Agreed Facts, that Ms Duggan suggested to me that this position was resisted by Attard and Supreme). However, there is a dispute between Cordina, on one hand, and Attard and Supreme on the other, as to what consequent orders I should make in light of these two declarations.

Consent for use of the Lairage and the Offal Tower?

1. I note, in this context, that there is a difference in the positions advanced by Mr McEwen and Ms Duggan concerning whether or not, in addition to the necessity for a building certificate for each structure, it would also be necessary for there to be some application to the Council made with respect to each of the Lairage and the Offal Tower to permit them to be used in the fashion necessary for their integration into Supreme's operational processes on the site.
2. Although I raised aspects of this element with both Mr McEwen and Ms Duggan during the course of the hearings, I have concluded that, notwithstanding the provisions of s 56 of the Civil Procedure Act 2005, it is inappropriate for me to make any determination in these proceedings as to whether any application (whether a development application or a further modification application does not require my consideration) might be required or not. I have reached this conclusion because the Council has made only a submitting appearance and I do not have the benefit of any view that the Council might hold as to whether such an application was required for either or both of the Lairage and the Offal Tower to permit their use as part of Supreme's production processes.
3. I consider it reasonable to expect that, in any discussions that representatives of Supreme might have with the Council, the Council will make its views known as to whether or not it considers that an application for the use of either the Lairage or the Offal Tower (or both) is a necessary corollary to a building certificate application for each of those structures (taking, if it did so, a position adopting the process discussed by Bignold J in Ireland v Cessnock Council [1999] NSWLEC 25; (1099) 110 LGERA 311). I therefore consider it premature to embark on any determination of whether or not such applications for use might be necessary.

Suspension of restraint on use of the Lairage and the Offal Tower?

1. I return, therefore, to the question of whether or not I should, in effect, risk shutting down Supreme's processes on the site until the building certificate applications for (and, if made, applications for the use of) these structures are determined by the Council.
2. The position advanced on behalf of Cordina for each of these structures is that Attard and Supreme should be restrained from using either of them until consent is obtained for the use of the relevant structure.
3. On the other hand, Ms Duggan put on behalf of Attard and Supreme that, as a matter of discretion, any restraint on use of either structure should be postponed (at least initially) for sufficient time to enable discussions to be held with the Council about the two building certificate applications.
4. Ms Duggan submitted that there were three reasons why, as a matter of discretion, I should permit ongoing use of each of the Lairage and the Offal Tower pending the resolution of the building certificate applications made to the Council. Those reasons were: 1. Cordina is a commercial competitor of Supreme (Exhibit B, tab A13, folio 76); 2. The Council encouraged Attard in correspondence dated 7 January 2015, to consider two options to resolve the matters concerning the changes in Supreme's processes with one of those options being to lodge a modification application (Exhibit B, tab A6, folio 28); and 3. That there would be a significant social impact on employees of Supreme, if the two structures were not permitted to be used, as production would need to cease. The relevant socio-demographics of the employees (Exhibit B, tab A7, folio 38) being relevant on this point.
5. I consider each of these bases put as warranting suspension in turn.

Commercial competitor

1. Although it is clear from the second paragraph in Cordina's objection letter of 12 February 2015 that Cordina is a commercial competitor to Supreme, this letter sets out a variety of reasons why Cordina was objecting to the proposed modification application then being considered by the Council.
2. There is nothing in this correspondence that would cause me to conclude that those objections were vexatious or frivolous. The legislative scheme permits objections at the application assessment stage as well as permitting post approval proceedings of the nature here commenced by Cordina. I am unable to discern any appropriate basis to exercise discretion in favour of Supreme as a consequence of the first proposition advanced by Ms Duggan.

Council's suggestions

1. I now turn to the second proposition, encouragement by the Council. In this context, it is appropriate to set out precisely the terms of the relevant portion of the Council's letter to Attard dated 7 January 2015. It commences at the foot of the first page of the letter and continues on the second. The relevant portion is in the following terms: Council is willing to work with you to resolve the matters in this regard. The two options available are either: (1) make application to modify Development Consent DA 18772/1994 under s 96 of the Environmental Planning and Assessment Act 1979 to permit use of slaughtering poultry on the premise. Please note that an application to modify a consent must result in the development being substantially the same development. or (2) Submit a new Development Application for use of the premises to slaughter and process poultry.
2. This advice from the Council is, from its face, entirely uncontroversial. The second sentence of (1) properly embodies a warning to Attard that the "substantially the same development" issue would need to be considered by the Council on such a modification application. Such potential issue has now given rise to the present proceedings brought by Cordina.
3. More tellingly, however, nothing in this letter relates to either the Lairage or the Offal Tower and, Supreme having elected to pursue the first option outlined by the Council, it did not seek to regularise the erection or use of the Lairage (Statement of Agreed Facts at 32) or the Offal Tower (Statement of Agreed Facts at 38) through the modification application.
4. I do not consider that this second ground is any basis for the exercise of discretion, in favour of Supreme, concerning either structure.

Impacts on Supreme's employees

1. I now turn to the third basis upon which Ms Duggan submitted I should exercise discretion not to require cessation of use of either the Lairage or the Offal Tower prior to at least allowing sufficient time for discussions to be held between Supreme and the Council about the building certificate applications.
2. This ground for exercise of discretion is founded on the social impact that requiring immediate cessation of the use of the two structures would cause if Supreme's operations were to cease and thus render Supreme's staff (or at least some of them) unemployed. In support of this proposition, Ms Duggan me to a portion of the documents lodged with the Council in support of the modification application. This this document reads, relevantly, under the heading "Conclusion" as follows: Supreme Poultry have to resolve this problem quickly. We have 85 staff that desperately need to return to work. Most of these people came from back to work agencies like the Salvos ORS or people from the mountain that have not been able to find work for a long period of time.
3. The relevant contemporary employment position is described in the Statement of Agreed Facts (at 31) in the following terms: The Second Respondent [Supreme] employs approximately 107 employees of whom 23 (or 22%) are engaged in primary processing, 75 are engaged in secondary processing and 9 are engaged in management/administration.
4. Mr McEwen identified that primary processing constitutes the initial killing and cleaning elements of the activities undertaken on the site. Use of the Lairage is an essential pre-requisite to the activities for which 23 of the employees are engaged. Although Mr McEwen suggested that Supreme's activities on the site could be continued, if re-arranged, in an interim fashion by the importation of whole or part chicken carcasses (as had occurred in a past operation on the site), there is no proper evidentiary basis upon which I could conclude that that would be able to be implemented immediately (or at all) by re-arrangement of the processing operations on the site or that the 23 employees displaced from the killing and cleaning process could be gainfully employed - even if it were possible to reinstitute such an imported dead bird based process.
5. Taking the position for Supreme (and, particularly, its employees) at its best for Supreme, it seems to me that there is a significant risk that at least 23 employees of Supreme (those engaged in primary processing) would not be able to be continued in their employment if I were to mandate immediate cessation of use of the Lairage and the Offal Tower. It seems to me that there is, in the circumstances, no useful basis for distinguishing between these two structures for this consideration.

Conclusion on suspension of restraint of using the Lairage or Offal Tower

1. Given the nature of the work force as earlier described in the extract from the document in support of the modification application, I am satisfied that the short-term social impact on the 23 primary processing employees would be significantly adverse and that they would be, in effect, innocent victims of a failure of Supreme to seek consent prior to the erection of the Lairage and the Offal Tower. It matters not, in this context, whether that failure by Supreme was as a result of ignorance, incompetence, arrogance or some other reason. There can be absolutely no suggestion that these 23 workers were in any way complicit in that failure.
2. It is also relevant that, in this context, the Council's decision-maker was satisfied that minimal environmental impact would be caused by the modifications sought coming into effect. For the reasons earlier set out, I am satisfied that that is the correct conclusion (not merely that it was reasonable for the delegate so to conclude). The consequence of this is that, if the Lairage and the Offal Tower are permitted to be used whilst Supreme and the Council discuss the building certificate applications, there will be no adverse environmental consequences of doing so.
3. As a consequence, solely on the basis of the likely significant short-term adverse economic and social impacts on those 23 employees, I have concluded that it is appropriate to exercise my discretion and not require the immediate cessation of the use of either the Lairage or the Offal Tower.
4. As the necessary further consequence, the orders will provide that such use is to cease but that the requirement to cease is suspended for eight weeks to permit discussions with the Council and with Supreme having liberty to approach for a further extension of that deferral.
5. Obviously, any further deferral will only be considered in the light of what information is then available concerning discussions with the Council on the building certificate applications lodged on 17 June 2015 for the Lairage and the Offal Tower and whatever position might be adopted by the Council as to the necessity or otherwise for other applications to permit the use of either of the Lairage or the Offal Tower for the purposes necessary for their integration in Supreme's production processes.
6. Although, if in response to the applications of 17 June 2015, the Council grants building certificates to the Lairage and the Offal Tower, such building certificates only act as a shield against enforcement activity by the Council (see s149E of the Act) rather than as a universal protection, I do not consider that the possibility of commencement of third party proceedings (even if the Council issues building certificates for these structures) should prevent me from allowing an appropriate period for consideration of such applications. Indeed, as earlier observed, it may well be that the Council expresses an opinion to Supreme in the context of those applications as to whether or not the Council is of the view that consent may also be required for the use of those structures even if building certificates were to be given for them.
7. It is also appropriate to observe that, should the Council determine to issue either or both of the building certificates for which Supreme has made application and the Council does not inform Supreme that an application for use of either the Lairage or the Offal Tower (or both of them) is necessary or, if the Council does so inform Supreme, Supreme chooses not to make such an application or applications, this is likely to require further exploration of and determination about whether consent for use of either or both of the Lairage and the Offal Tower is necessary.
8. Self-evidently, whatever happens in the discussions with the Council will also weigh on whether or not some extension of the suspension of restraining orders concerning the Lairage and the Offal Tower is warranted.

Costs

1. In proceedings such as these, costs ordinarily follow the event. Although Cordina has had modest success by virtue of the declarations concerning the erection of the Lairage and the Offal Tower without development consent, the failure to seek and necessity for such consent was conceded by Attard and Supreme in the Statement of Agreed Facts and had, earlier, been the subject of building certificate applications made to the Council on 17 June 2015.
2. Whilst it might reasonably be assumed that the commencement of these proceedings on 27 April 2015 may have caused (or at least contributed to) Supreme applying for building certificates for the two structures, within the overall scope of the proceedings, these successes are quite minor.
3. Given that I have concluded that Cordina failed entirely on the fundamental basis upon which it sought relief (the alleged invalidity of the 2015 modification approval), it seems to me that, prima facie, the appropriate order to be made is that Cordina should pay the costs of Attard and Supreme as agreed or assessed. However, as there may be some reason why a costs order in this form might not be warranted, I propose to cast this order in a form so that it will have effect unless a party indicates to my Associate, within a week of these orders, that that party wishes to be heard to propose some alternative costs order in the proceedings.

Declarations and orders

1. As consequence of the foregoing, the Court makes the following declarations and orders: 1. Declare that the First and Second Respondents, by erecting a structure (the Lairage) at the western end of the main building located at 2598 Wisemans Ferry Road, Mangrove Mountain (Lot 100 DP 844480), carried out development for which development consent was required and for which development consent had not been obtained in breach of s 76A of the Environmental Planning and Assessment Act 1979; 2. Order that the First and Second Respondents are restrained from using the Lairage for the purposes of a livestock processing industry; 3. Declare that the First and Second Respondents, by erecting a structure (the Offal Tower) at the southern end of the main building at 2598 Wisemans Ferry Road, Mangrove Mountain (Lot 100 DP 844480), carried out development for which development consent was required and for which development consent had not been obtained in breach of s 76A of the Environmental Planning and Assessment Act 1979; 4. Order that the First and Second Respondents are restrained from using the Offal Tower for the purposes of a livestock processing industry; 5. Orders (2) and (4) are suspended until 5.00pm on Wednesday, 9 September 2015; 6. Liberty to apply on 3 days' notice; 7. Unless the Applicant or the First and Second Respondents notify my Associate by 4.30 pm on Friday 24 July that they wish to be heard to propose some alternative order as to costs, the Applicant is to pay the First and Second Respondents' costs of the proceedings as agreed or assessed; 8. The proceedings are otherwise dismissed; and 9. The exhibits are returned.

Amendments 15 July 2015 - Paragraph 1 - correction to spelling of Wisemans Paragraph 35 - omitted bracket at end of paragraph Paragraph 74 - floor replaced with flaw Paragraph 81 - second that in second sentence deleted. Deleted the comma after pass in the third sentence Paragraph 82 - insert comma after modification Paragraph 83 - replace set out by Kirby P in from with as set out by Kirby P in Paragraph 118 - delete the comma after initially) Paragraph 123 - delete second, obviously rogue (1) Paragraph 143 - insert of s before 76A in order (1) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 15 July 2015